Written in Collaboration with Lauren Honhart
The Freedom of Information Act (FOIA) was signed into law by President Lyndon Johnson in 1966, and has since provided the public with the right to request access to records from any federal agency, unless the requested information is protected from disclosure by law. Information may be exempt from disclosure to protect interests such as personal privacy, national security, and law enforcement.
The FOIA is a vital part of our democracy allowing U.S. citizens to access information about our government. Since its enactment, the FOIA has exposed several instances of government misconduct and threats to public health and safety. For example, an FOIA request by activists in the 1980s revealed that the Environmental Protection Agency was aware of paper mills discharging toxins into rivers. Another notable example was in the aftermath of 2005’s Hurricane Katrina, during which an FOIA request revealed the government’s wasteful spending during the recovery efforts. This legislation promotes government transparency and accountability.
In today’s digital age, social media plays a significant role in government communication as a fast, cost-effective way to keep citizens informed. Because the FOIA generally includes anything relating to the business of a government-related agency, social media postings of any government-related agency is considered public record and can be included in a FOIA request, though certain state laws on this topic may vary.
Whether or not a requestor will receive the information requested depends on whether the information is considered official business of a government agency. However, under FOIA Exemption 6, private data about individuals (e.g., social media postings) held by a government-related agency is exempt if disclosure would constitute a clearly unwarranted invasion of privacy. Another exemption from FOIA requests is outlined in Exemption 7, which excludes information pertaining to law enforcement investigations. The purpose of this exemption is to prevent interference with proceedings or investigations, deprive a person of a right to a fair trial, breach personal privacy interests in law enforcement files, reveal law enforcement techniques and procedures, or endanger the life or physical safety of any individual. In summary, under FOIA and Exemptions 6 and 7, social media postings may only be included in FOIA requests if they pertain to a government agency, so long as the information requested is not a clear invasion of privacy or a hindrance to law enforcement investigations.
When handling collected evidence for a FOIA request, or any digital evidence collection, it is important that the digital chain of custody is properly maintained. According to the Computer Security Resource Center (CSRC), the digital chain of custody is a process that tracks the movement of evidence through its collection, safeguarding, and analysis lifecycle by documenting each person who handled the evidence, the date/time it was collected or transferred, and the purpose for the transfer. Maintaining the chain of custody is vital in preserving the integrity of evidence and preventing it from contamination, which could alter the original state of the evidence. If evidence is not properly preserved, the evidence presented in court could be challenged and ruled inadmissible. The chain of custody process should begin at the start of data collection to examination, analysis, reporting, to the presentation of evidence in court. Maintaining the digital chain of custody ensures that the evidence collected has not been compromised in any way.
Unfortunately, FOIA requests simply release social media information to the requestor and do not discover or preserve the information. When law firms use in-house resources to conduct open-source research, they run the risk of misidentifying subjects, accidentally interacting with subjects, or overlooking important information. Successful online investigations require proper training, ample time, and requisite resources.
SMI Aware is a practical solution to curbing these challenges and risks. Our in-house team of analysts are Certified Social Media Intelligence Experts trained to conduct open-source investigations in an ethical manner. SMI Aware’s team of analysts use a combination of proprietary technology and tools in order to collect evidence from the web and social media that is legally defensible and preserved in compliance with federal regulations. This unique combination of our team’s expertise combined with SMI Aware’s patented software ensures a secure chain of custody and mitigates risk.